McCain born outside of the US, probably not "natural born" even though mom & pop were both citizens.

moot at this point, but other factors that argueably made McCain eligible

1. He was born in the Panama Canal Zone, which was US Territory at the time. Same as Goldwater was born in Arizona Territory...2. Traditionally, Military Officers and State Dept officer deployed on foreign assignemnts had no issue with their children born there. The same was extended to missionaries at one time. The thinking being that they were 'natural born" having no allegiance to any King or Potentate because of the assignment.

Oh, so NOW the MSM is "concerned" about the "natural born" bit in the Constitution, NOW that it's an Elephant under consideration. Where was all this overweening publicly voiced concern when the Jackass--the current resident of 1600 Penn Ave-- was up for election?

The "natural born" requirement was due to a fear of monarchy - to prevent a foreign born royal from undermining a fragile republic by becoming president. The time to amendment the Constitution on this point has long past and we should allow all US citizens the right to become president after a certain number of years of being a citizen. Perhaps 35.

Got Mick on the line now...he says fuck you to Althouse and all the other traitors to the United States Constitution. Hopes you all die of cancer. Asks to be kept informed of upcoming Althouse reunion in July as well.

The "natural born" requirement was due to a fear of monarchy - to prevent a foreign born royal from undermining a fragile republic by becoming president.

Amexpat, perhaps you can support this with a citation. I was under the impression that the idea was to ensure that the President's loyalty to the land of his birth was not going to be divided from his loyalty to America. But if you can show a citation I could be persuaded otherwise.

Amexpat, perhaps you can support this with a citation. I was under the impression that the idea was to ensure that the President's loyalty to the land of his birth was not going to be divided from his loyalty to America.

The Wikipedia article on the "Natural-born-citizen clause" makes both your point and mine. But there is an overlap as most likely only someone of royal descent would have the resources and motivation to usurp the young republic.

From the Wikipedia article: "There was also a perception that a usurper from the European aristocracy could potentially immigrate and buy his way into power. Constitutional scholar Akhil Amar points out that the laws of England specifically allowed a foreign-born head of state, and that this had been an unhappy experience for many who had emigrated to the United States."

The Amending process of the US Constitution has been broken for 50 years. Organized opposition can derail any controversial Amendment proposal in the US Senate or the legislatures. The last truly contested, fought over Amendment that passed with substantial opposition was the elimination of poll tax Amendment in 1962. We would need a Convention to bring that out-dated and badly in need of revision "Sacred Parchment" up to date...Don't hold your breath.

But hypothetically, if the Amending process was functional again.

1. Clause to allow US citizenship for offspring of foreign nationals serving in the US military abroad.

2. Clause eliminating "birthright citizenship" - only if one or more parents is American - with no dual citizenship/dual loyalty issues. And the kid cannot be accepted as a citizen if the parents claim baby he or she is also the citizen of one or more countries.

3. A clause to make it possible to strip citizenship and the rights of citizenship from those who take up arms against the US in time of war.

4. Children born here to political, economic, disaster refugees are not US Citizens but considered only citizens of the land of their refugee parents birth. Nor babies born to foreign students, tourists, diplomatic staff, military forces will be considered US citizens.

The 1790 Naturalization act said that children born to American citizens outside the U.S. were to be considered natural born:http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=227

The 1795 act may or may not cut against that.

On the other hand, the dissenters in U.S. v. Wong Kim Ark (Fuller joined by Harlan), suggested that the majority's logic in that case, whcih made location at birth fundamental to citizenship, would run in a contrary direction.

That might be why they dissented.

Interesting that Harlan dissented, but there is a logic. In 1896, Harlan suggested that the aribtrary category of race should not exist in U.S. law, and in 1898, he agreed with an opinion holdig that an arbitrary thing--where one's mother happened to be when one is born--ought not to be the essence of citizenship.

But that does not mean that Fuller and Harlan are correct about the implications of the majority opinion.

The key question is what "subject to the jurisdiction thereof" means. If the dissenters in Wong Kim Ark were right, then location at birth (aka: "birthrigth") is NOT what the 14th Amendment requires. It is neither necessary nor sufficient to determine the nationality of someone.

It's also worth noting that, as far as I know, the majority opinion only applies to permanent legal residents. I don't think the court has ruled that "subject to the jurisdiction thereof" applies to people here contrary to our laws, or people only here for a temporary stay, as in tourists, or perhaps college students.

campy said...Organized opposition can derail any controversial Amendment proposal in the US Senate or the legislatures.

Wow, he says that like it's a bad thing.

====================It is a bad thing, if a nation is paralyzed from updating and correcting their own operating manual.

That's all it is. An operating manual. Not a Sacred Parchment where the infallable correctness passed from Gods lips to the Holy Founders themselves through a divine intermediary and we revere each old precious word so that we can only worship and listen to how our annointed Lawyer-Sanhedrin interpret it.

"That's all it is. An operating manual. Not a Sacred Parchment where the infallable correctness passed from Gods lips to the Holy Founders themselves through a divine intermediary and we revere each old precious word so that we can only worship and listen to how our annointed Lawyer-Sanhedrin interpret it."

Precisely why it should be changed by amendment, and not by reinterpretation by 5 robed aristocrats.

And the kid cannot be accepted as a citizen if the parents claim baby he or she is also the citizen of one or more countries.

So, kid is born in America to two naturalized American parents who have been living here for twenty years, who came from a country that 1) does not allow renunciation of citizenship, and 2) declares all legitimate offspring of its citizens are its citizens. You accordingly, what? Require the parents to deny the actual fact of the baby's legal citizenship in his parents' home country, or else this child of two American citizens born on American soil can't be an American?

I am not now, nor have I ever been, a citizen of the USA, so I ask purely for mischief's sake:

Does "natural-born" preclude people born after their mother had an epidural?

Bonus question: does an epidural constitute violation of the divine will expressed in Genesis 3:16

To the woman the Lord God said,“I will make your pains in childbearing very severe; with painful labour you will give birth to children. Your desire will be for your husband, and he will rule over you.”

Lots of interesting comments. Rather than try to write a number of notes responding to different people, let me make the following points:

1) There are two ways one can become a US Citizen. One is by the Constitution which says (14th Amendment): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Note that it does not say that they need to be solely subject to the jurisdication of the US. Or subject to the jurisdication of the US anywhere else. With the exception of those with diplomatic immunity, that would everybody physically present here. Tourists, students, illegal immigrants and so on. All are subject to all federal state and local laws.

So the only question would be whether they are "born" here and I don't doubt that there are some in these comments who will try to parse that word. Is a baby born via C Section "born" here? (Remember MacBeth?)

2)By a plain reading of the Amendment, it seems clear that if not physically born in the US, one can only acquire citizenship by "naturalization". The parameters for naturalization are determined by Congress writing a law. Currently a child born of a US citizen mother is automatically a US citizen (with an important caveat discussed in another point below) but Congress could change that law tomorrow so that the child born in Canada to a US mother is NOT automatically a citizen. They could write the law so he can only become a citizen the same way a child born to a Canadian mother would or impose any other restrictions they might see fit. Not retroactively, though. It seems pretty clear that citizenship, once attained by birth or naturalization, cannot be taken away. See Afroyim, Perez, Nishakawa cases, for some recent (20th century) Supreme jurisprudence on this

(Continued in next note)

John R Henry Esq.

(Esquire as in "gentleman and former presidential candidate", not as in lawyer)

3) We have a clear distinction between these two types of citizenship. Birth in the US is a Constitutional grant of citizenship. That can only be changed by amendment. Birth outside of the US, even to a US citizen, is a legal or congressional grant of citizenship and could be changed by law tomorrow.

4) Under current law, the child born to a US citizen mother outside the US is automatically a citizen. If that child is a girl, and she grows up never living in the US, her children will not be US citizens. I think the woman has to live at least 14 years (it may be a different period) in the US for her to be able to pass her US citizenship on.

5) As a practical matter, there is no difference between citizenship by being born in the US, being born abroad to a citizen mother or coming to the US and becomeing a naturalized citizen. The only place, as far as I know, that it matters is the presidency which requires a "Natural Born" citizen.

6) We have over 200 years in which every president and every major presidential candidate has been born in the US or what became the US in the case of Washington, Jefferson and so on. Possibly in the case of Goldwater. It seems to have served us well thus far. I suppose we could argue about the legal meaning of "Natural Born" but clearly the custom has meant born on US soil. It seems like a pretty good test in that you either are or are not born here. There is not a lot of room for argument. (The only exception might be Arthur who may have been born in Canada. He always claimed to have been born in the US, though. And may have been)

7) It is an issue that needs to be resolved one way or the other. Perhaps by federal law defining what "Natural Born" means. Or it might take an amendment. The reason it needs to be defined is that we have folks like Cruz, McCain, Rubio, Obama and perhaps others where it is unclear whether or not they can Constitutionally be president. What happens if we elect a Cruz (or a McCain) and then the Supremes rule, 1 year into their term, that they are not elegible? Think of the mess that would be. Or even, if a Rubio is nominated and as an October Surprise the Supremes decide he is not elegible. Again, a big mess.

8) I think that born on US soil is a good test of citizenship, if citizenship is to have any meaning. Not perfect but better than many other countries have. Germany has Turks who have nver lived in Turkey, but have lived there 3, 4 or 5 generations without being even eligible for citizenship. Or my friend in Antigua. He is a Portugese citizen because his great-grandfather, who moved the family to Antigua 100 years ago was Portugese. He is a Canadian citizen, as are his wife and children because the practice is for the womenfolk to go to Canada to have their children. This is done specifically for the Canadian passport. He is also an Antigua citizen since he has lived his whole life there, other than College in Canada. It sort of makes a joke of the concept of citizenship.

I wonder how many here have actually read the CFR section on US citizenship vs get their info from USA today and similar sources? Might be a good place to start clearing up some misconceptions.

John R Henry Esq.

(Esquire as in "gentleman and former presidential candidate", not as in lawyer)

You make a major logical mistake in your arguments. Just because the 14th Amendment states that anyone born in the US is automatically a citizen by birth, does NOT mean that anyone born outside the US is automatically NOT a citizen by birth.

The purpose of that clause of the 14th was to ensure that states could not deny rights to ex-slaves by defining them as non-citizens. The amendment says nothing about those born outside the US. All through US history, there has been acknowledgement in law and custom that children of US citizens are US citizens by birth.

Why must "subject to the jurisdiction thereof" mean subjuct to any jurisdiction at all?One could just as easily conclude that it means the full jurisdiction of the U.S. One could just as easily conclude that the plain meaning is jurisdiction with no limitations.

You are right, neither the 14th Amendment nor the Constitution more generally does not say anything, one way or the other about the citizenship of someone born outside of the US.

That is left up to Congress to make laws about. So let me ask you this: Absent a law that does grant citizenship at birth to a child of a citizen, what would lead you to presume that the child would automatically be a citizen?

Perhaps, there is something in common law. I don't know. But there would be nothing in US law or Constitution to make this happen.

Or, to take a more extreme example, suppose Congress passed a law saying explicitly that the foreign born child of a US citizen mother is NOT a citizen unless they go through the same process that any other foreign born person needs to go through to be naturalized. (Not retroactively, of course)

Surely you would agree that Congress has that power, would you not?

This is the kind of thing that I meant with the two kinds of citizenship. One by Constitution that can only be changed by amendment. The other by law that can be, and often has been, changed by whim of Congress.

"Why must "subject to the jurisdiction thereof" mean subjuct to any jurisdiction at all?One could just as easily conclude that it means the full jurisdiction of the U.S. One could just as easily conclude that the plain meaning is jurisdiction with no limitations."

What jurisdiction does the US have over me when I am outside of the US? I would say none. They can exercise jurisdiction over me if and when I return to the US but otherwise there is pretty much nothing they can do to exercise jurisdiction. They can drone me, of course. But they do that to everyone.

As for the non-citizen in the US, what jurisdiction does the US not have over them? As far as I can see, they have the same jurisdiction over the Brazilian in the US on a 24 hour stopover as they have over me, a lifelong US citizen/resident. The US might exercise that jurisdiction differently such as kicking someone out for a crime rather than trying them, but the jurisdiction still exists.

I think this who argument about people who hold dual citizenships somehow being outside of the 14th Amendment based on jurisdiction is BS. So do the courts which for a couple hundred years have consistently said that being born in the US makes one a US citizen.

Diplomats excepted, of course. They are specifically exempt from our laws. As are our diplomats from foreign laws.

It will be quite interesting when the courts look at someone like Cruz for natural born citizenship. They were completely uninterested in questions about whether the long form birth certificate submitted by the Obama staff was a forgery, and, apparently despite a lot of reasons why it was more likely than not a forgery. And, I think that the ultimate answer there is that Obama is a natural born citizen via his mother, regardless of whether they were actually in Hawaii at the time or not.

But, can the Dems convince a judge to throw a Ted Cruz off a ballot? Sure. Plenty of politicized judges out there, and the party has never been all that worried about hypocrisy - just witness the pro-union poison pills that they are insisting on with immigration reform. Or, indeed, any number of other subjects, including the PATRIOT Act, drones, deficit spending, etc.

Will that work? Who knows this far out. But, if Cruz doesn't run in 2016, then there is a distinct possibility that we might actually see Obama's real records by the time that Cruz does run, including maybe even his real birth cirtificate, if he really has one, and whether he got preferential treatment throughout college and law school as a foreign student, which still looks somewhat likely, or just as a Black.